Australian Immigration Daily News

In an article that I posted last week, I reviewed a decision of the Federal Circuit Court which involved the “genuine temporary entrant” requirement for student visa applicants. In that case, Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 (20 July 2015), the Court held that an applicant can satisfy the requirement to be a genuine temporary entrant even if they have a desire or wish to remain in Australia following the completion of their studies if a viable pathway should become available.

In other words, according to the decision in Khanna, a person can have “dual “or “overlapping” intentions 1) to return to their home country at the end of their course of studies if there is no further visa option; and 2) to remain in Australia if the further visa option can be realized – and holding these two intentions does not disqualify a person from being characterized as a “genuine temporary entrant”.

Interestingly enough, the “genuine temporary entrant” criterion was put to the test in a different context in another case that was decided by the Federal Circuit Court in May 2015. And again, in this earlier case – Jung v Minister for Immigration &  Anor, (2015) FCCA 1096 (4 May 2015), it was found that a person can simultaneously hold seemingly “inconsistent” or “contradictory” intentions with respect to remaining in Australia and yet nonetheless meet the genuine temporary entrant criterion.

Under what circumstances can the Administrative Appeals Tribunal refuse to consider information that comes out during cross-examination of a witness at a hearing involving the cancellation of a visa on character grounds?

This was the question that the High Court had to decide in the recent case of Uelese v Minister for Immigration and Border Protection (2015) HCA 2015 (6 May 2015).  In this case, the Court was called upon to determine how section 500(6H) of the Migration Act should be applied.  By its plain language, this section provides that the AAT “must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing”.

The wording of this section of the Act may appear to be clear enough, but what if there is a “wrinkle”, or unexpected legal complexity?  For example, if the information in question is brought forward during the cross-examination of a witness that is being conducted by a representative of the Minister, or by the Tribunal itself, is the Tribunal still prevented from considering the information when deciding whether to uphold the cancellation of the visa?

A new decision of the Federal Circuit Court emphasizes how important it is for RMAs to confirm that their electronic communications with the Department have actually been received. The decision – Bui v Minister for Immigration & Anor (2015) FCCA 1931 (17 July 2015) also illustrates why it is essential for RMAs to keep good records of their email correspondence with the Department (among other things, the Department might claim that it “never got the email” or might fail to take note of a notification of a change in the RMA’s  email address, which could result in issues with timely notification of a decision on a visa application – as discussed in this article!!). 

The background of the Bui case was that the visa applicant had engaged a migration agent to assist her with an application for a Temporary Business Entry visa application.  The application form that was submitted to the Department confirmed (in November 2013) that the migration agent had been appointed, and provided the agent’s “then-current” email address for receiving communications from the Department.  Several months after the application was lodged (in mid-June 2014), the agent sent a letter to the Department by email, which was accompanied by a “Form 956”. Both this letter and the 956 Form stated that the agent’s email address had changed.  However, this email apparently did not reach the Department (or at least the Department so claimed when the case came before the MRT!!!).

Shortly after the migration agent had attempted to notify the Department of the change in his email address (in late June 2014), a Departmental officer refused the client’s visa application.  Notification of the refusal was sent by email and by post to the address that was given on the original application form (and not to the new email address that had been provided by the agent). This email did not come to the agent’s attention because the address that had been provided on the application form was no longer “active” (it was described in the Court’s judgment as being “defunct” at the time that the visa application was refused).  Consequently, the allowable period for seeking review of the refusal of the visa before the MRT expired without an application for review being made.

One of the most confounding aspects of Australia’s migration laws is the requirement that applicants for student visas demonstrate that they “intend genuinely to stay in Australia temporarily”.  This requirement is a common criterion for all categories of student visas – ranging from the Schools Sector (subclass 570) right through to the Post Graduate Research Sector (subclass 574).

Nonetheless, it is well known to everyone that one of the most common pathways to permanent residency and citizenship in Australia is for students to come from overseas and then to obtain a further visa after completing their educations, enabling them to remain here to work and live. Without even looking at statistics, once can be confident that many hundreds of thousands of people have followed this exact course.  And, in view of Australia’s ongoing “skills shortage”, one would think that Australia would want people who get their educational qualifications here to stay and participate in the Australian workforce and the advancement of the Australian economy. Viewed from this perspective, the “genuine temporary entrant” criterion for student visas seems to be a strange one indeed.

Given how attractive Australia is, there can be little doubt that a large number of people entering Australia on student visas would say that they would like to stay in Australia after finishing their studies if an opportunity existed for them to do so. It is therefore very legitimate to ask whether possessing a desire to stay in Australia on a permanent basis, if possible, would disqualify an applicant from obtaining a student visa, on the grounds that they fail the test of being a “genuine temporary entrant”.

In what circumstances will a fraud committed against a client by a migration agent be cause for an adverse decision by the Migration Review Tribunal to be overturned by the Federal Courts?

This issue was considered a few years ago by the High Court, in the case of SZDFE v Minister for Immigration and Citizenship (2007) HCA 35 (2 August 2007). It remains a timely issue. 

As we have seen in the article that I posted earlier this week, it was an important factor in the decision of the case of Singh v Minister for Immigration & Anor, (2014) FCA 2867 which was handed down as recently as December 2014 (in the Singh  case, it was held that an “innocent mistake” by a migration agent in filing an application that was different from the one that his client expected him to make was found to be conduct that was short of fraud, and therefore insufficient to prompt a reversal of an MRT decision.